On December 27, 2020, President Trump signed the Consolidated Appropriations Act, 2021 (the Act) into law. The Act provides for significant changes to the Paycheck Protection Program (PPP) and establishes a second round of additional funding for the PPP. Over the past several weeks, the SBA has issued numerous guidance documents and forms to implement the provisions of the Act, including PPP SBA Form 3508D.
Form 3508D – Borrower’s Disclosure of Certain Controlling Interests was published by the SBA on January 19, 2021. The Form is designed to provide a disclosure document for PPP borrowers, as required by provisions of the Act, to disclose certain controlling interest or financial relationships associated with the PPP borrowing entity.
The provisions require that a PPP borrower disclose whether a covered individual directly or indirectly held a controlling interest in a borrower at the time the Borrower’s loan application was submitted to the PPP lender.
A covered individual is defined as (a) any one of the following government officials: the President, the Vice President, the head of an Executive Department, or a member of Congress, and (b) the Spouse of a government official described in (a).
A controlling interest is defined as owning, controlling, or holding not less than 20% by vote or value any class of equity interest in a borrower.
The form further states that if a borrower has already applied for PPP forgiveness, the disclosure form must be completed and provided to the lender, and in certain circumstances to the SBA, no later than January 26, 2021. And for borrowers not having yet applied for forgiveness, the completed form should be submitted in conjunction with the forgiveness application.
The issuance of this form by the SBA has raised many questions from PPP borrowers about the requirements to complete and submit the form. Based on the instructions provided with the form, every borrower receiving a PPP first round loan prior to December 27, 2020 would be required to complete and submit this document.
On January 21, 2021, the Virginia District Office of the SBA published a notice clarifying the disclosure requirement, stating that the disclosure document only needs to be completed in certain circumstances, and is not required for all PPP borrowers, providing that the form and disclosure are only required if a covered individual held a controlling interest in the borrower at the time of the borrower’s PPP loan application.
This notice was issued by the Virginia District Office of the SBA, and is not yet published on the website of the SBA. We are monitoring the SBA website publications for this notification to appear there also.
Should you believe this form and disclosure requirement applies to your organization or should you have any questions please feel free to contact the Nichols, Cauley & Associates, LLC – PPP team or your Nichols Cauley representative.
Email Michael at MJohnston@NicholsCauley.com
Call him at 770.461.1115
Email John at JCorn@NicholsCauley.com
Call him at 404.214.1301
Email Chris at CBailey@NicholsCauley.com
Call him at 770.422.0598
Email Kirk at KJarrett@NicholsCauley.com
Call him at 706.237.7990